Citation Nr: 9826653
Decision Date: 09/04/98 Archive Date: 09/14/98
DOCKET NO. 96-18 025 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for residuals of an injury
to the thoracic and lumbar spine.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
G. A. Wasik, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1952 to
October 1954.
This matter is before the Board of Veterans' Appeals (Board)
on an appeal of an October 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO).
REMAND
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Veterans Appeals
(Court) for additional development or other appropriate
action must be handled in an expeditious manner. See The
Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-
446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101
(West Supp. 1997) (Historical and Statutory Notes). In
addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
The veteran has claimed entitlement to service connection for
residuals of an injury to the thoracic and lumbar spine. The
veteran has reported that this injury occurred when enemy
artillery shells exploded causing some railroad ties to fall
on the veteran's back in May 1953.
The veteran has introduced into evidence a letter dated in
May 1996 from Dr. S. M. Santos, who practices in Mexico. The
letter, which was written in Spanish and accompanied by an
English translation, indicates that the doctor had treated
the veteran beginning in March 1955 for a number of different
disabilities including “muscular contractions dorsal at the
expense of scoliosis of lumbar column probably secondary to
antique traumatism.” The Board notes, however, that Dr.
Santos’ letter was not accompanied by any clinical records
demonstrating when the veteran's back was first treated and
for how long. The Board finds an attempt must be made to
secure the clinical records upon which this doctor’s letter
is based.
In a statement received in March 1996, the veteran reported
that he was treated for his back injury in Mexico from
February 1955 to 1981 by Dr. R. Hernandez. The veteran
further reported that this doctor had died in 1981. He also
indicated that from 1981 to 1995, he was treated by a sports
therapist named S. Sanchez. No treatment records from either
Dr. Hernandez or from S. Sanchez have been associated with
the claims file. An attempt must be made to secure these
records.
Of record is a statement from A. D. Hall, M.D. dated in June
1996. The doctor reported that the veteran was unable to
work because of degenerative arthritis of the spine. The
Board finds an opinion as to the etiology of the veteran's
currently existing back disorder would be helpful in
adjudicating the veteran's claim.
The Board is deferring adjudication of the issue of
entitlement to service connection for residuals of an injury
to the thoracic and lumbar spine pending a remand of the case
to the RO for further development as follows:
1. The RO should request the veteran to
identify the names, addresses, and
approximate dates of treatment for all health
care providers, VA and non-VA, inpatient and
outpatient, who may possess additional
records pertinent to his claim for service
connection for residuals of an injury to the
thoracic and lumbar spine. After obtaining
any necessary authorization, the RO should
request and associate with the claims file
legible copies of the veteran’s complete
treatment reports from all sources identified
which have not previously been secured. The
Board is particularly interested in treatment
records from Dr. S. M. Santos, Dr. R.
Hernandez and from S. Sanchez. Regardless of
the response from the veteran, the RO should
obtain any current, outstanding VA treatment
records.
2. The RO should arrange for an
examination of the veteran by a VA
orthopedic surgeon to ascertain the
nature, extent of severity, and etiology
of any residuals of an injury to the
thoracic and lumbar spine found to be
present. The claims file and a separate
copy of this remand must be made
available to and reviewed by the examiner
prior and pursuant to conduction and
completion of the examination. Any
indicated special studies should be
conducted. The examiner should elicit a
history from the veteran of any injury to
his thoracic and lumbar spine during
service and since his release from
service. The examiner should offer an
opinion as to whether it is at least as
likely as not that any residuals of an
injury to the thoracic and lumbar spine
found on examination is(are) related to
any incident of service. Any opinions
expressed must be accompanied by a
complete rationale. The examiner must
include a notation that the claims file
was reviewed for the examination.
3. Thereafter, the RO should review the
claims file to ensure that all of the
foregoing requested development has been
completed. In particular, the RO should
review the requested examination report
and required opinions to ensure that they
are responsive to and in complete
compliance with the directives of this
remand and if they are not, the RO should
implement corrective procedures.
4. After undertaking any development
deemed essential in addition to that
requested above, the RO should
readjudicate the issue of entitlement to
service connection for a residuals of an
injury to the thoracic and lumbar spine.
If the benefits requested on appeal are not granted to the
veteran’s satisfaction, the RO should issue a supplemental
statement of the case. A reasonable period of time for a
response should be afforded. Thereafter, the case should be
returned to the Board for final appellate review, if
otherwise in order. By this remand, the Board intimates no
opinion as to any final outcome warranted. No action is
required of the veteran until he is notified by the RO.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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